(PC) Zackery v. Eldridge ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 RANDALL ZACKERY, No. 2:20-cv-0018-EFB-P 11 Plaintiff, 12 v. ORDER 13 LAURA ELDRIDGE, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 17 U.S.C. § 1983. The court screened plaintiff’s original complaint on March 14, 2020, found that 18 plaintiff had failed to state sufficient facts to support his claims, and directed plaintiff to file an 19 amended complaint. ECF No. 7. Plaintiff has filed an amended complaint, which is before the 20 court for screening under 28 U.S.C. § 1915A. ECF No. 10. 21 I. Screening 22 A. Requirement and Standards 23 Federal courts must engage in a preliminary screening of cases in which prisoners seek 24 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. 25 § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 26 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which 27 relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 28 relief.” Id. § 1915A(b). 1 A pro se plaintiff, like other litigants, must satisfy the pleading requirements of Rule 8(a) 2 of the Federal Rules of Civil Procedure. Rule 8(a)(2) “requires a complaint to include a short and 3 plain statement of the claim showing that the pleader is entitled to relief, in order to give the 4 defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atl. Corp. v. 5 Twombly, 550 U.S. 544, 554, 562-563 (2007) (citing Conley v. Gibson, 355 U.S. 41 (1957)). 6 While the complaint must comply with the “short and plaint statement” requirements of Rule 8, 7 its allegations must also include the specificity required by Twombly and Ashcroft v. Iqbal, 556 8 U.S. 662, 679 (2009). 9 To avoid dismissal for failure to state a claim a complaint must contain more than “naked 10 assertions,” “labels and conclusions” or “a formulaic recitation of the elements of a cause of 11 action.” Twombly, 550 U.S. at 555-57. In other words, “[t]hreadbare recitals of the elements of a 12 cause of action, supported by mere conclusory statements do not suffice.” Iqbal, 556 U.S. at 678. 13 Furthermore, a claim upon which the court can grant relief must have facial plausibility. 14 Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual 15 content that allows the court to draw the reasonable inference that the defendant is liable for the 16 misconduct alleged.” Iqbal, 556 U.S. at 678. When considering whether a complaint states a 17 claim upon which relief can be granted, the court must accept the allegations as true, Erickson v. 18 Pardus, 551 U.S. 89 (2007), and construe the complaint in the light most favorable to the 19 plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 20 B. Factual Allegations 21 Plaintiff alleges that he was using a pull-up bar on the exercise yard of the California 22 Health Care Facility, Stockton (“CHCF”) on February 19, 2019 and the bar broke, causing 23 plaintiff to fall on his back and head on the hard cement ground and sustain injuries. ECF No. 10 24 at 9. According to plaintiff, defendant Laura Eldridge, warden of CHCF at the time, “neglected 25 or fail[ed] to check her facility and facility exercise equipment for normal use, or to have it 26 checked by plaint operations of the prison officials.” Id. Plaintiff alleges that “any responsible 27 person” in Eldridge’s position would have “checked for safety on a daily basis” to make sure the 28 exercise equipment was functioning properly. Id. 1 Plaintiff also sues Marco Zeer, who he alleges assembled and maintained the pull-up bars. 2 Id at 10. Plaintiff claims that Zeer installed the bars incorrectly “and/or did no tests, checks or 3 maintenance” on the bars for months or years. Id. If Zeer had monitored it properly, plaintiff 4 claims that the bar would not have broken. Id. 5 C. Analysis 6 Plaintiff alleges that Eldridge and Zeer, through the facts recited above, violated his 7 Eighth Amendment rights to “personal safety” and to be free from deliberate indifference. 8 The Eighth Amendment entitles prisoners to an adequate level of personal safety. 9 Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2000). An inmate who alleges that he was 10 subjected to an unsafe condition in violation of the Eighth Amendment must state facts sufficient 11 to satisfy the familiar “deliberate indifference” standard; i.e., he must allege that the defendant 12 prison officials (1) subjected him to a substantial risk of serious harm with (2) subjective 13 awareness of the risk. Farmer v. Brennan, 511 U.S. 825, 834, 838 (1994). “[A]n official’s 14 failure to alleviate a significant risk that he should have perceived but did not” does not amount to 15 deliberate indifference. Id. at 838. 16 There are no allegations in the amended complaint from which a factfinder could infer 17 that defendants were aware that the pull-up bar posed a risk of harm to plaintiff. An Eighth 18 Amendment claim cannot be predicated solely on negligence in failing to perform regular 19 inspections. See, e.g., Benson v. Caddy, 761 F.2d 335, 340 (7th Cir. 1985); Million v. Grounds, 20 No. 5:14cv11, 2015 U.S. Dist. LEXIS 125020, at *12 (E.D. Tex. Aug. 19, 2015). 21 The court will provide plaintiff one last opportunity to amend the complaint to attempt to 22 state viable claims against defendants. 23 If plaintiff elects to file a second amended complaint, that pleading must identify as a 24 defendant only persons who personally participated in a substantial way in depriving him of a 25 federal constitutional right. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) (a person 26 subjects another to the deprivation of a constitutional right if he does an act, participates in 27 another’s act or omits to perform an act he is legally required to do that causes the alleged 28 deprivation). wOoOe 2: OU UV VEY EOE BP MMUUETOCTI bt PR Ve te PAY Tt 1 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 2 || amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 3 Any amended complaint must be written or typed so that it so that it is complete in itself 4 || without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 5 || complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 6 || earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 7 | F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 8 || being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 9 | 1967)). 10 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 11 || Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 12 | See E.D. Cal. L.R. 110. 13 Il. Order 14 For the foregoing reasons, it is HEREBY ORDERED that: 15 1. Plaintiff’?s amended complaint is dismissed with leave to amend within 30 days from 16 the date of service of this order. 17 2. Failure to comply with any part of this this order may result in dismissal of this action. 18 | DATED: May 13, 2020. 19 tid, PDEA 20 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28